.
DE ATLEY COMPANY, INCORPORATED
June 10, 1996
WEST 95-512-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION


                                 
                          June 10, 1996 
                                 

SECRETARY OF LABOR,           :    CIVIL PENALTY PROCEEDING
 MINE SAFETY AND HEALTH       :
 ADMINISTRATION (MSHA),       :    Docket No. WEST 95-512-M
               Petitioner     :    A. C. No. 10-01900-05505
                              :
          v.                  :
                              :    Plant No. 4
DE ATLEY COMPANY,             :
  INCORPORATED,               :
               Respondent     :

                      ORDER VACATING DEFAULT
                  DECISION APPROVING SETTLEMENT
                        ORDER OF DISMISSAL

Before:  Judge Merlin

     This case is before me pursuant to Commission order dated
April 17, 1996.

     On March 21, 1996, the operator filed a letter requesting
relief from an order of default which was issued on February 7, 
1996. The basis for the operator's request is that a settlement
was reached prior to the order of default, but that the person
responsible for the case resigned and his replacement was unaware
of the settlement motion. As a result, the operator did not sign
the settlement motion until after the default was issued.

     On April 1, 1996, the Solicitor filed a response to the
operator's request for relief, recommending that the matter be 
remanded to the undersigned and stating that the Secretary opposed
the reopening of the final order.

     On April 29, 1996, I issued an order directing the Solicitor
to either file the agreed upon settlement motion or submit a brief
supporting his opposition to reopening.  In that  order  I found 
that the operator's statements constituted grounds for relief from
default.  See, R B Coal Company, 17 FMSHRC 2153 (November 1995).

     On May 16, 1996, the parties filed a joint motion to approve
settlement for the one violation in this case.  A reduction in the
penalty from $1,019 to $570 is proposed.  I have reviewed  the
documentation and  representations in this case and conclude
that the proffered settlement is appropriate under the criteria
set forth in section 110(i) of the Act.

     In light of the foregoing, it is ORDERED that the default
 dated February 7, 1996, be and is hereby VACATED.

     It is further ORDERED that the motion for approval of
settlement is GRANTED, and the operator having paid, this
case is DISMISSED.


                              Paul Merlin
                              Chief Administrative Law Judge


Distribution:
(Certified Mail)

Matthew L. Vadnal, Esq.,
Office of the Solicitor, 
U.S. Department of Labor, 
1111 Third Avenue, Suite 945, 
Seattle, WA 98101

Mr. Max S. Jensen,
Office Engineer,
DeAtley  Company, Inc., 
3665 Snake River Avenue, 
P. O. Box 648,
Lewiston, ID 83501


/gl